Against Mandatory Retirement For Judges
February 8, 2009, 12:22 pm
Filed under: Ian

Over at Lawyers, Guns and Money, Scott suggests that “it would be much better for justices to be appointed to fixed, non-renewable terms. This would (largely) fix the problem of some presidents randomly getting more appointments than others and age being given an inappropriate priority in nominating decisions.”

Of course I would love to see Scalia, Kennedy and Thomas forced to retire during President Obama’s tenure (and would be willing to lose Stevens and Souter as part of the bargain), but in the long run I don’t think that requiring judges to retire after a lengthy tenure—say 15 or 20 years—is in the interest of the country.

The Supreme Court wields a great deal of power, possessing, among other things, the practical ability to declare any and all laws unconstitutional, or to take away basic constitutional rights that have existed since the framing.  Last June, the Court came within one vote of holding that the President can throw someone he thinks may be a terrorist in a gulag and keep them there as long as he wants.  Similarly, at least one of the Court’s present members, Justice Thomas, thinks that the federal minimum wage, the ban on whites-only lunch counters and much of the New Deal is unconstitutional.

All of this is to say that, if America ever elected a truly radical President who wanted to transform the nation in the way Justice Thomas suggests, it would be much easier to make that happen if the justices’ tenure was limited.  If we assume a 15-year term limit, any two term President would have the power to appoint a majority of the Court’s members.  The President wouldn’t just control the Executive Branch, he would control the Constitution as well.  Even if we assume at 20-year term, two-term Presidents would be guaranteed four vacancies, and an unexpected retirement or death could easily give them their fifth seat.

This is too much power for one person to wield.  Especially because, in a post-Bush v. Gore world, a President who controls the Supreme Court can conceivably name their successor.  Viewed in this way, life tenure for judges is a very important check on the President’s power.  It is possible for the Executive Branch to remake the judiciary and the Constitution through its judicial appointments power, but in order to bring about truly radical change, the people have to return like-minded Presidents to the White House for a fair number of elections in a row.

UPDATE: Welcome LG&M readers!  I respond to Scott here.


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[…] could life tenure have that could outweigh the undeniable costs? One potential response is nightmare scenarios. With all do respect, this response has to be considered highly unconvincing. It should first of […]

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